Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 1 of 7 PageID #: 3260
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION FOR RECONSIDERATION OF THE
`COURT’S CLAIM CONSTRUCTION ORDER (DKT. 93) ON THE “FORWARD
`FACING” TERMS
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`

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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 2 of 7 PageID #: 3261
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`I.
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`INTRODUCTION
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`In its Claim Construction Order, the Court found with respect to the “forward facing” claim
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`terms that “the claims here at issue can be readily understood as using ‘forward facing’ merely as
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`a label.” Dkt. 93 at 72. With this understanding of the claims, the Court rejected Defendants’
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`indefiniteness argument and construed the “forward facing portion” and “forward facing light
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`source” terms to have their plain meaning. However, statements GTP made during parallel IPR
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`proceedings to overcome prior art make clear that “forward facing” as used in the claims is not
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`merely a label. GTP’s IPR statements were made after the close of briefing and just six days before
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`the claim construction hearing and were not before the Court for consideration. Thus, Samsung1
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`respectfully requests that the Court reconsider its claim construction ruling on the “forward facing”
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`terms in view of this additional evidence.2
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`II.
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`ARGUMENT
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`Motions to reconsider serve the limited purpose of “permit[ting] a party to correct manifest
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`errors of law or fact, or to present newly discovered evidence.” Krim v. pcOrder.com, Inc., 212
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`F.R.D. 329, 331 (W.D. Tex. 2002); accord Tex. Instruments, Inc. v. Hyundai Elecs. Indus., Co.,
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`50 F. Supp. 2d 619, 621 (E.D. Tex. 1999). A motion for reconsideration may be granted on the
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`following three grounds: “(1) an intervening change in controlling law; (2) the availability of new
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`evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest
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`injustice.” In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).
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`1 GTP and the Huawei Defendants reported that they have reached a settlement in principle with
`respect to all accused products other than the Nexus 6P (Dkt. 101); this motion for reconsideration
`is filed on behalf of the Samsung Defendants only.
`2 While Samsung does not address the Court’s constructions of the remaining claim terms in this
`motion for reconsideration, Samsung reserves its right to appellate review as appropriate.
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`-2-
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`

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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 3 of 7 PageID #: 3262
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`In this case, there is new evidence not previously available, specifically statements GTP
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`made in a parallel IPR proceeding to overcome prior art two weeks after Defendants’ responsive
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`claim construction brief was filed and six days before the claim construction hearing. Neither side
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`had argued to the Court that “forward facing” as used in the claims is just a label, and thus GTP’s
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`IPR statements were not apparently relevant prior to the Court’s Claim Construction Order. It is
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`also necessary for the Court to fully consider GTP’s IPR statements to prevent manifest injustice,
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`because GTP would otherwise benefit by improperly relying on inconsistent claim interpretations
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`for infringement in district court and validity in the PTAB.
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`During claim construction briefing, both sides agreed the phrase “forward facing” refers to
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`a particular side. Specifically, GTP stated that “when read in light of the specification, a POSITA
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`would understand that the term is referring to a certain side of the claimed apparatus.” GTP’s
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`Opening Claim Construction Brief (Dkt. 64) at 23-24 (emphasis added). Defendants agreed and
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`pointed out in their responsive brief that the patent does not explain which “certain side” is the
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`forward facing side. Dkt. 70 at 27. GTP’s reply brief argued only that Defendants did not cite to
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`expert opinion on the issue. Dkt. 72 at 9. At the hearing, GTP still did not argue that “forward
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`facing” is just a label, but instead repeated the arguments from its briefing. Markman Tr. at 94:1-
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`15. Defendants responded to GTP’s arguments by pointing out that their expert did opine that the
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`“forward facing” terms are indefinite, and that one could not determine how to, e.g., identify a
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`forward facing side from a backward facing side. Id. at 94:21-96:25.
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`The Court construed the terms to have their plain meaning, rejecting Defendants’ argument
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`that “the phrase ‘forward facing’ must refer to a particular identifiable direction” and instead
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`finding that “the claims here at issue can be readily understood as using ‘forward facing’ merely
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`as a label.” Dkt. 93 at 72. The Court stated that “[t]his is useful because, for example, dependent
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`-3-
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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 4 of 7 PageID #: 3263
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`Claim 5 recites ‘[t]he portable device of claim 1 further including a forward facing light source,’
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`so in that context the phrase ‘forward facing’ provides a common reference that helps the reader
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`understand the relationships among the recited components.” Dkt. 93 at 72-73.
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`However, neither side had argued to the Court that “forward facing” is just a label, and for
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`good reason. On June 3, 2021, Apple, Inc. filed an IPR Petition on the ’949 Patent contending that
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`the claims are invalid over certain prior art references. One of those references (Numazaki)
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`discloses, among other things, a laptop with a photo-detection sensor unit 702 next to the keyboard
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`as depicted below.
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`Ex. A, IPR2021-00921, Patent Owner’s Preliminary Response at 8. On September 15, 2021, just
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`six days before the claim construction hearing and two weeks after Defendants filed their
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`responsive claim construction brief, GTP filed its preliminary response in the IPR. In its response,
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`GTP did not contend that the photo-detection sensor unit 702 is not in the same “portion” of the
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`laptop housing. Rather, GTP argued repeatedly that the prior art does not disclose the claimed
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`“forward facing portion” because the photo-detection sensor unit 702 is in an “upward facing
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`portion” of the laptop (i.e., the keyboard). Specifically, GTP argued:
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`This upward facing portion of the laptop, by the unambiguous
`language of Numazaki, is not forward facing, as required by claim
`element [1(a)]. Even assuming, arguendo, that photo-detection
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`-4-
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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 5 of 7 PageID #: 3264
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`sensor unit (702) (i.e., reflected light extraction unit (102) or
`visible light photo detection sensor unit (351)) has a field of view
`that is forward facing, photo-detection sensor unit (702) itself is
`not located on a forward-facing portion of the laptop, as required
`by claim element [1(a)].”
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` .
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` . .
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`As discussed above in reference to claim element [1(a)], Numazaki
`fails to teach a forward facing portion with an electro-optical
`sensor. Specifically, Numazaki’s photo-detection sensor unit (702)
`is located on the upward facing portion, not the forward facing
`portion, of the laptop.
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` .
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` . .
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`As discussed above in reference to claim element [1(a)], Numazaki
`fails to teach a forward facing portion with a sensor. Specifically,
`Numazaki’s photo-detection sensor unit (702) is located on the
`upward facing portion, not the forward facing portion, of the
`laptop.
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`Id. at 9, 20, 24 (emphasis in original).
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`These clear and unequivocal statements by GTP treat the phrase “forward facing” as much
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`more than just a label that provides a common reference for the “forward facing light source” in
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`Claim 5. These statements treat the phrase “forward facing” as a point of distinction over the prior
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`art that serves as a basis for why the claims are not invalid over the prior art.
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`The intrinsic evidence provides no guidance allowing a person of ordinary skill in the art
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`to figure out whether a particular side of a device is forward facing, backward facing, upward
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`facing, or downward facing, and this issue is only compounded for handheld devices that can be
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`placed flat on a table such that the display and camera are facing upward, similar to the keyboard
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`in the Numazaki prior art reference that GTP distinguished from the claims.
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`III. CONCLUSION
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`In view of GTP’s IPR statements that rely on the term “forward facing” to overcome prior
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`art and thus treat the claim term as a patentable distinction rather than merely a label, Samsung
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`-5-
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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 6 of 7 PageID #: 3265
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`respectfully requests that the Court reconsider its construction of the “forward facing” terms. In
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`view of the intrinsic evidence and the unrebutted opinions of Defendants’ expert, as explained by
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`Defendants in their briefing and at the hearing, the “forward facing” terms are indefinite.
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`DATED: October 26, 2021
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Allan M. Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1700
`Facsimile: 202-551-1705
`
`Elizabeth L. Brann
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
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`-6-
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`Case 2:21-cv-00040-JRG Document 107 Filed 10/26/21 Page 7 of 7 PageID #: 3266
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`Melissa R. Smith (TX Bar No. 24001351)
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on October 26, 2021. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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